Court upholds 'hacking' charge against smut-surfing worker

Interesting definition leads to severe legal flagellation

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A US court has turned down an appeal from a man convicted of computer hacking offences for using a workplace computer to post nude pictures of himself onto a swingers website.

Richard Wolf used his work PC to upload naked pics of himself to show prospective buddies through the Adult Friend Finder website, as well as surfing for pornographic content on other sites. He was caught and convicted by a jury over offences under a law that prohibits users from either stealing data or accessing prohibited material through workplace systems.

Wolf admits wrongdoing but denies hacking, promoting an appeal to an Ohio appeal court, which failed this week after judges ruled his misuse of workplace PCs was covered by Ohio state statute.

Wolf was employed at the Shelby City Wastewater Treatment Plant when he made the ill-advised decision to use workplace PCs and join Adult Friend Finder in January 2006. The nude pictures he uploaded were discovered by his supervisor, Larry Wise, during routine computer maintenance.

A complaint was filed with police, who interviewed and charged Wolf after he admitted porn surfing in the workplace and wasting around 100 hours of work time on personal business. Computer forensics analysis on Wolf's Workplace PC uncovered 703 pornographic photos along with several sexually explicit emails Wolf exchanged with Mistress Patrice, a dominatrix Wolf sought to hire for sexual services.

Wolf was put on trial and convicted on three charges under Ohio State law including unauthorised access to a computer (ie computer hacking), theft of services in office (because he wasted city time to surf for porn) and the less serious misdemeanor charge of soliciting a prostitute. He was sentenced to 15 months' imprisonment and ordered to pay a fine of $5,500, as well as $2,400 in compensation to the city over lost work time.

Shelby City Wastewater Treatment Plant also fired Wolf, who was placed on suspension during the initial investigation before he was allowed back to work. He was reportedly even promoted before his conviction prompted a decision to show him the door.

His sentence was later reduced to two and a half years on probation. Although the theft of service conviction was struck down, a decision prosecutors intend to appeal to Ohio's supreme court, the computer hacking conviction was upheld on appeal.

Appeal judges ruled that Wolf’s conduct was "beyond the scope of the express or implied consent" so that the computer hacking charges were therefore well founded.

Mark Rasch, a former federal prosecutor of computer crimes turned computer security consultant, said it would have been better to fire Wolf than drag him through the courts. "His uploading of nude pictures is certainly inappropriate and something he could be terminated for, but it was perfectly legal," Rasch toldWired. "When you use the heavy hand of the criminal law to prosecute inappropriate behavior, it’s just an abuse of the criminal statutes."

Rasch highlighted concerns that the earlier scope of US anti-hacking law - which only covered unauthorized access, or breaking into a computer - had been amended to cover "exceeding the scope of authorization to access a computer". The extension stemmed from a case involving a tax office employee who went hunting through IRS systems for tax returns by an assistant district attorney involved in prosecuting his father.

Rasch argues that changes introduced because of this case introduced loose and ambiguous definitions of hacking that are being applied too broadly, citing Wolf's conviction as an example.

David Carto, the lawyer who handled Wolf’s appeal, criticised the decision to go after Wolf as if he had committed a sex crime instead of for violating his terms and conditions of employment. Carto also criticised Shelby City Wastewater Treatment Plant for failing to place internet filters on workplace PCs.

"The reason he was prosecuted was clearly because of the content of what he was looking at," Carto told Wired. "If somebody else had been on an internet site studying horticulture, I don’t think he would have been prosecuted.

"It was not obscene. It was just something that was not approved of by certain elements of the city government and by the court in which he was tried. The prosecutor and the judge both treated this basically as a sex offense." ®